The Constitutional Incorporation of International Law in Gulf Arab States: Kuwait’s Model of Qualified Dualism in Comparative Perspective

Abstract

This article advances "qualified dualism" as a theoretically precise framework for understanding how Kuwait's constitutional architecture mediates the domestic reception of international law. Situated within a constitutional pluralism framework, it demonstrates that Kuwait's formal dualist prerequisites for treaty incorporation, requiring parliamentary authorization under Article 70 of the 1962 Constitution, coexist with a functionally direct judicial applicability before the Court of Cassation, calibrated through the self-executing doctrine. This bifurcation between constitutional form and judicial function constitutes a distinctive normative configuration that has neither been systematically analysed nor adequately theorized in the context of Gulf Cooperation Council (GCC) legal systems. The study identifies three structural features of Kuwait's qualified dualism: (i) mandatory parliamentary authorization for treaty incorporation; (ii) judicial direct applicability of self-executing treaty provisions; and (iii) the residual subordination of international obligations to constitutional supremacy and the lex posterior principle. The domestic status of customary international law represents the system's most consequential structural gap. Three research questions guide the inquiry: how Kuwait's constitutional text governs treaty incorporation; to what extent judicial practice produces functional direct applicability despite formal dualist prerequisites; and how Kuwait's model compares with analogous hybrid constitutional arrangements in neighbouring Arab civil law jurisdictions. The article contributes to the diversification of comparative international law scholarship beyond Western-centric frameworks and provides a generalizable analytical framework for constitutional mediation of international law in non-Western hybrid legal orders.